No Equal Justice

I. Summary

Because a prisoner ordinarily is divested of the privilege
to vote, the right to file a court action might be said to be his remaining
most fundamental political right, because preservative of all
rights.
—United States Supreme Court, McCarthy v. Madigan, 503 U.S. 140,
153 (1992).

This amendment will help put an end to the inmate
litigation fun-and-games.
—Senator Robert Dole, during Senate debate on an
early version of the Prison Litigation Reform Act, September 29, 1995.

What was a sentence for a white collar crime that should
have ended many years ago will never end. I got a life sentence.
—Keith DeBlasio, December 8, 2008. DeBlasio was raped
while incarcerated in a federal prison and contracted HIV as a result.

Carved in stone over the entrance to the United States
Supreme Court are the words “equal justice under law.” And for more
than 140 years, the US Constitution has guaranteed to all persons the
“equal protection of the laws.”[1] But for those in
prisons, jails, and juvenile facilities in the United States, the promise of
equal justice is illusory. The Prison Litigation Reform Act (PLRA), passed by
Congress in 1996, denies equal access to the courts to the more than 2.3
million incarcerated persons in the United States.

The PLRA subjects lawsuits brought by prisoners in the
federal courts to a host of burdens and restrictions that apply to no other
persons. As a result of these restrictions, prisoners seeking the protection of
the courts against unhealthy or dangerous conditions of confinement, or those
seeking a remedy for injuries inflicted by prison staff and others, have had
their cases thrown out of court. These restrictions apply not only to persons
who have been convicted of crime, but also to pretrial detainees who have not
yet been tried and are presumed innocent. Human Rights Watch is not aware of
any other country in which national legislation singles out prisoners for a
unique set of barriers to vindicating their legal rights in court.[2]

The PLRA’s restrictions include:

The exhaustion of remedies requirement. Before a
prisoner may file a lawsuit in court, he must first take his complaints through
all levels of the prison’s or jail’s grievance system, complying
with all deadlines and other procedural rules of that system.[3] If
the prisoner fails to comply with all technical requirements, or misses a
filing deadline that may be as short as a few days, his right to sue may be
lost forever.

The physical injury requirement. A prisoner may not
recover compensation for “mental or emotional injury” unless she
makes a “prior showing of physical injury.”[4] Under
this provision, prisoners who have been subjected to sexual assault and other
intentional abuse by prison staff have been denied a remedy. Indeed, because of
this provision, many of the abuses that took place in Iraq’s Abu Ghraib prison would not have been compensable if they had occurred in a US prison or jail.

Application to children. The provisions of the PLRA
apply not only to adult prisoners, but also to children confined in prisons,
jails, and juvenile detention facilities.[5] The exhaustion
requirement has proven to be an especially formidable barrier to justice for incarcerated
children, particularly in light of court rulings that efforts to exhaust on
their behalf by parents or other adults do not satisfy the PLRA.

Restrictions on court oversight of prison conditions.
The PLRA restricts the power of federal courts to make and enforce orders
limiting overcrowding or otherwise remedying unlawful conditions in prisons and
jails.[6]

Limitations on attorney fees. If a prisoner files a
lawsuit and wins, establishing that her rights have been violated, the PLRA
limits the amount her attorneys can be paid.[7]

The PLRA’s sponsors argued that the law was necessary
to deal with “frivolous” lawsuits brought by prisoners. Some
prisoners, like some non-prisoners, do file frivolous suits, and the PLRA
includes the reasonable requirement that prisoner cases be subject to a
preliminary screening process and be immediately dismissed if they are
frivolous or malicious, or if they fail to state a claim on which relief can be
granted.[8]
But the cases described in this report show that other provisions of the PLRA
have resulted in dismissal of claims involving serious physical injury, sexual
assault, and intentional abuse by prison staff—claims that no reasonable
person would characterize as frivolous.

Unlike many other democracies, the United States has no
independent national agency that monitors conditions in prisons, jails, and
juvenile facilities and enforces minimal standards of health, safety, and
humane treatment. Perhaps for this reason, oversight and reform of conditions
in these institutions has fallen primarily to the federal courts. Beginning in
the 1970s, lawsuits brought by prisoners led to improved medical care,
sanitation, and protection from assault. While significant problems remained,
by the time the PLRA was passed in 1996, US prison conditions had been
transformed in just a few short decades.

The effect of the PLRA on prisoners’ access to the
courts was swift. Between 1995 and 1997, federal civil rights filings by
prisoners fell 33 percent, despite the fact that the number of incarcerated
persons had grown by 10 percent in the same period. By 2001 prisoner filings
were down 43 percent from their 1995 level, despite a 23 percent increase in
the incarcerated population. By 2006 the number of prisoner lawsuits filed per
thousand prisoners had fallen 60 percent since 1995.

If the effect of the PLRA were to selectively discourage the
filing of frivolous or meritless lawsuits, as its sponsors predicted, then we
would expect to find prisoners winning a larger percentage of their lawsuits
after the law’s enactment than they did before. But the most
comprehensive study to date shows just the opposite: since passage of the PLRA,
prisoners not only are filing fewer lawsuits, but also are succeeding in a
smaller proportion of the cases they do file. This strongly suggests that
rather than filtering out meritless lawsuits, the PLRA has simply tilted the
playing field against prisoners across the board. The author of a comprehensive
study on the impact of the act concludes that “the PLRA’s new
decision standards have imposed new and very high hurdles so that even
constitutionally meritorious cases are often thrown out of court.”

Jeanne Woodford, the former warden of San Quentin State
Prison and former director of the California Department of Corrections, told
Human Rights Watch that she believes the PLRA has endangered the progress that
has been made in prison administration:

I do think the PLRA does need to be reformed. I think that
there’s prison experts around the country who would agree with that....
I’m told that many people in [the American Correctional Association]
believe that as well. That they’re starting to see abuses.... A lot of
the corrections professionals were telling me that they had concerns that a lot
of the steps forward they’d made in Texas were reverting because of the
PLRA. And I can see that happening in California too.[9]

Drawing on interviews with former corrections officials,
prisoners denied remedies for abuse, and criminal justice experts, this reportexamines three provisions of the PLRA—the exhaustion requirement, the
physical injury requirement, and the law’s application to children—and
their effect on prisoners’ access to justice.

Thirteen years after the passage of the PLRA, it has become
apparent that Congress went too far. Congress must act now to amend the PLRA,
to restore the rule of law to US prisons, jails, and juvenile facilities, and
ensure that “equal protection of the laws” is not an empty promise.[10]

II. Recommendations

To the President and Congress of the United States:

Enact legislation that amends the PLRA by:

removing the requirement that courts dismiss lawsuits in
which prisoners have not exhausted the prison or jail grievance system,
and instead substituting a provision allowing courts to stay such lawsuits
temporarily to allow prisoners to take their complaints through the
grievance system (amend 42 U.S.C. sec. 1997e(a)).

allowing prisoners to recover compensation for mental or
emotional injuries on the same basis as non-prisoners (eliminate 42 U.S.C.
sec. 1997e(e)).

removing from the scope of the PLRA persons held in
juvenile detention facilities, and persons under age 18 held in adult
prisons and jails (amend 18 U.S.C. sec. 3626(g)(3) and (5) and 42 U.S.C. sec.
1997e(h)).

III. Incarceration in the United States

The United States has the largest prison population in the
world, with more than 2.3 million persons behind bars on any given day.[11]
The United States also has the world’s highest per capita rate of
incarceration, with 760 incarcerated persons for every 100,000 residents. This
rate is five to ten times higher than those of other industrialized democracies
like England and Wales (151 per 100,000), Canada (116), and Sweden (74).[12]

But the US prison system is also atypical in other ways. As
already noted, unlike many other democracies, the United States has no
independent national agency that monitors prison conditions and enforces
minimal standards of health, safety, and humane treatment. The bipartisan
Commission on Safety and Abuse in America’s Prisons recently concluded
that “few [US] states have monitoring systems that operate outside state
and local departments of corrections, and the few systems that do exist are
generally underresourced and lacking in real power.”[13] By
contrast, in Great Britain, independent oversight of prison conditions is
provided by Her Majesty’s Inspectorate of Prisons. In 46 European states,
the Council of Europe’s Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment supplements monitoring by national
bodies.[14]

The United States is also unusual in depriving prisoners of
the right to vote. In all but two of the fifty US states, convicted prisoners
are barred from voting. This is in marked contrast to many other democracies,
which either allow all prisoners to vote (such as Austria, Germany, and
Ireland) or disfranchise only a small proportion of prisoners (such as France,
Norway, and Portugal).[15]
The United States Supreme Court has recognized that the disfranchisement of
prisoners makes their right of access to the courts correspondingly more
important: “[b]ecause a prisoner ordinarily is divested of the privilege
to vote, the right to file a court action might be said to be his remaining
most fundamental political right, because preservative of all rights.”[16]

Perhaps for these reasons, reform of US prisons and jails
has taken place primarily through litigation, rather than through executive or
legislative action.[17]
And lawsuits brought by prisoners and their lawyers have transformed the US
prison system in a few short decades. In the 1978 case of Hutto v. Finney,
the US Supreme Court gave the following description of conditions in one
Arkansas prison:

Cummins Farm, the institution at the center of this
litigation, required its 1,000 inmates to work in the fields 10 hours a day,
six days a week, using mule-drawn tools and tending crops by hand. The inmates
were sometimes required to run to and from the fields, with a guard in an
automobile or on horseback driving them on. They worked in all sorts of
weather, so long as the temperature was above freezing, sometimes in unsuitably
light clothing or without shoes. The inmates slept together in large, 100-man
barracks and some convicts, known as “creepers,” would slip from
their beds to crawl along the floor, stalking their sleeping enemies. In one
18-month period, there were 17 stabbings, all but 1 occurring in the barracks.
Homosexual rape was so common and uncontrolled that some potential victims
dared not sleep; instead they would leave their beds and spend the night
clinging to the bars nearest the guards' station....

Inmates were lashed with a
wooden-handled leather strap five feet long and four inches wide. Although it
was not official policy to do so, some inmates were apparently whipped for
minor offenses until their skin was bloody and bruised....

The “Tucker telephone,”
a hand-cranked device, was used to administer electrical shocks to various
sensitive parts of an inmate's body....

Confinement in punitive isolation
was for an indeterminate period of time. An average of 4, and sometimes as many
as 10 or 11, prisoners were crowded into windowless 8′x10′
cells containing no furniture other than a source of water and a toilet that
could only be flushed from outside the cell. At night the prisoners were given
mattresses to spread on the floor. Although some prisoners suffered from
infectious diseases such as hepatitis and venereal disease, mattresses were
removed and jumbled together each morning, then
returned to the cells at random in the evening.[18]

Spurred by Hutto and other Supreme Court decisions
ruling that prison conditions were subject to constitutional limits, prisoners
and their attorneys filed lawsuits challenging inadequate medical and mental
health care, dangerous and unhealthy physical facilities, abuse by prison
staff, and other unlawful conditions. In many cases, federal courts issued
prison-wide or even statewide orders to remedy these deficiencies. There remain
serious problems in US prisons, particularly with respect to the treatment of
vulnerable prisoners such as juveniles and persons with mental illness or
physical disabilities. But by the mid-1990s, conditions such as those at
Cummins Farm were largely a thing of the past.[19]

While the passage of the PLRA has had a detrimental effect
on reform efforts, litigation brought by prisoners continues to play a critical
role in enforcing minimal standards in US prisons and jails. According to
Jeanne Woodford, former San Quentin warden and California corrections director,
“litigation is probably the only thing that allows us to do our jobs as
professionals.” Woodford told Human Rights Watch of her testimony in a
lawsuit involving conditions on California’s death row. “I said to
the judge, ‘if it wasn’t for this litigation, I wouldn’t be
able to do my job as a warden, and my job as a warden is to keep everyone
safe.’”[20]

IV. Enactment of the Prison Litigation Reform Act

In the spring of 1996 Congress passed the Prison Litigation
Reform Act, and President Clinton signed the bill into law on April 26, 1996. The
PLRA brought sweeping and unprecedented changes in the ability of prisoners to
seek relief in court from conditions that threaten their health and safety or
otherwise violate their legal rights.[21]

The PLRA governs lawsuits brought in the federal courts of
the United States, whether those lawsuits involve federal, state, or local
facilities. Many US states have enacted laws that similarly restrict
prisoners’ access to state courts; those laws are beyond the scope of
this report.[22]

The proponents of the PLRA argued that prisoners were
clogging the courts with an avalanche of frivolous lawsuits, thus impairing the
quality of justice enjoyed by law-abiding persons. In reality, prisoners were
filing lawsuits at about the same rate as non-incarcerated persons,[23]
and prisoner lawsuits often involved allegations of physical abuse, inadequate
medical care, and other non-frivolous claims. The PLRA’s supporters also
expressed concern about court orders regulating prison conditions, although
such orders were issued only if a court found that prisoners’ rights had
been violated, or if prison officials consented to the order. Nevertheless, the
PLRA passed with broad support from both Republicans and Democrats.[24]

For a bill that made major changes in the enforceability of
fundamental rights, the PLRA received remarkably little congressional scrutiny.
It was passed not as a freestanding bill, but as an amendment to a bill to
appropriate funds for the continued operation of the federal government.[25]
The legislative record consists largely of anecdotes about allegedly frivolous
litigation brought by prisoners, such as a case in which “an inmate sued,
claiming cruel and unusual punishment because he received one jar of chunky and
one jar of creamy peanut butter after ordering two jars
of chunky from the prison canteen.”[26]

While the provision for preliminary screening of prisoner
lawsuits is reasonable, other provisions of the PLRA erect significant
obstacles to the enforcement of fundamental rights. For example, when a court
has issued an order to remedy unlawful conditions in a prison, jail, or
juvenile facility, the PLRA provides that officials can render that order
unenforceable simply by filing a motion in court.[27] And
the law’s severe restrictions on attorney fees mean that even prisoners
with meritorious cases have difficulty finding lawyers to assist them.[28]

V. The Exhaustion Requirement

Ordinarily, a person filing a lawsuit alleging that
government officials have violated her constitutional rights may go directly to
court. Even if an administrative process exists, there is no requirement to
complete it as a prerequisite to filing suit.[29] Until passage of
the PLRA, this general rule applied to prisoners as well.

Most prisons and jails have a system of administrative
remedies, more commonly known as grievance systems. These are mechanisms
through which prisoners can file complaints or make requests in writing, and
receive a written response from corrections officials. Most grievance systems
have filing deadlines—a prisoner must file within a certain time of the
incident complained about—and most have one or more levels of appeal.

Grievance systems emerged in the 1970s as a means of quickly
and informally resolving minor issues by encouraging prisoners to address
problems through established channels. They are also a means of keeping
officials apprised of problems and concerns among the prison population—a
review of all the grievances filed in a given month or year may reveal, for
example, a pattern of misconduct by a particular staff member. Grievance
systems were never designed to be the first step in a lawsuit, and it was never
contemplated when they were first introduced that a misstep in the grievance
process could result in a prisoner forfeiting his right to file in court.

Before passage of the PLRA, exhaustion of prison grievance
systems could be required only in very narrow circumstances. If the attorney general
of the United States had certified that a prison’s or jail’s
grievance system met specified standards, or if a federal judge found that the
system was “otherwise fair and effective,” a lawsuit filed by a
prisoner could be stayed for up to six months to require the prisoner to
exhaust “such plain, speedy, and effective administrative remedies as are
available.” In addition, exhaustion could be required only of adults who
had been convicted of a crime, not of detained children or persons held in jail
awaiting trial.[30]

The PLRA dramatically altered this legal landscape, deleting
the requirement that grievance systems be “fair and effective,” and
requiring that a lawsuit filed by a prisoner who had not pursued all avenues
for redress within the grievance system be dismissed rather than merely stayed.
The PLRA’s exhaustion requirement also applies to any adult or child held
in a prison, jail, or juvenile detention facility.[31] Indeed,
it applies even if the grievance system cannot provide the remedy the prisoner
is seeking, such as monetary compensation.[32]

A basic structural problem with the exhaustion requirement
is that prison officials themselves—the defendants in most lawsuits
brought by prisoners—typically design the grievance system that prisoners
must exhaust before filing suit. This creates obvious incentives for prison
officials to design grievance systems with short deadlines, multiple steps, and
numerous technical requirements. And unlike prior law, the PLRA imposes no
requirements for grievance systems: “the sky’s the limit for the
procedural complexity or difficulty of the exhaustion regime.”[33]

Some grievance systems include requirements that seem
designed to discourage, rather than facilitate, compliance by prisoners. For
example, some systems require that a prisoner first raise the issue she wishes
to grieve with the staff member involved—even if the grievance involves
an assault or other abusive conduct by that same staff member. One recent case
ruled that a prisoner whose complaint was that he was threatened and physically
assaulted by a corrections officer failed to exhaust because he did not first
discuss the issue with the officer who had allegedly assaulted him.[34]

There is also some evidence that prison officials have taken
advantage of the PLRA to discourage lawsuits by making grievance systems more
demanding. In Illinois, after a court ruled that a prisoner had complied with
the state prison system’s grievance process, rejecting prison
officials’ argument that his grievance was not sufficiently detailed,[35]
the prison system revised the policy to require “details regarding each
aspect of the offender’s complaint, including what happened, when, where,
and the name of each person who is the subject of or who is otherwise involved
in the complaint.”[36]

Shortening the Statute
of Limitations

The statute of limitations is
the time period within which a person must bring a lawsuit; after the statute
of limitations has run, the right to sue is lost. These limitation periods vary
from state to state, but are typically one, two, or three years from the
incident that is the subject of the suit.

For prisoners, the PLRA effectively shortens the statute of
limitations, from one or more years sometimes to a matter of days. If a
prisoner misses the deadline for filing his initial grievance—or for
filing any required appeals within the grievance system—his right to sue
is forever lost. In Woodford v. Ngo, in 2006, the US Supreme Court ruled
that a prisoner’s lawsuit must be dismissed because he had missed the
California prison system’s deadline for filing a grievance, which was 15
working days.[37]
Although the statute of limitations for the prisoner’s claim was one
year,[38]
the court ruled that the PLRA requires prisoners to comply with the grievance
system’s “deadlines and other critical procedural rules,” and
that the prisoner’s failure to meet the 15-day deadline had forfeited his
right to sue.[39]

California’s deadline of 15 working days is far from
unusual. According to one brief filed in the Woodford case, 13 state
prison systems have grievance filing deadlines of 10 calendar days or less;
some are as short as two or three days.[40] Deadlines
typically apply not only to the filing of the initial grievance, but to filing
at each of the required levels of appeal. The California grievance system has
three levels, each with a 15-day filing deadline.[41]

Courts have generally not excused prisoners’ failures
to meet even very short grievance filing deadlines, despite the existence of
extenuating circumstances. For example:

A court dismissed a
prisoner’s lawsuit for failure to exhaust, despite the fact that he
had been hospitalized outside the institution during the entire grievance
filing period.[42]

A prisoner’s lawsuit
alleging that he was beaten by staff was dismissed because the prisoner
had not initiated the grievance process within two business days of the
incident, despite the prisoner’s claim that immediately following
the assault he was placed in segregation, where officers did not provide
him with grievance forms.[43]

A prisoner missed the 14-day
grievance deadline because he was on suicide watch, with no access to
writing materials, for 19 days immediately after the incident giving rise
to the grievance. Although he later filed a grievance, the court dismissed
for failure to exhaust, ruling that he should have filed “as soon as
he was released from suicide watch.”[44]

A court ruled that a prisoner
who had filed his grievance late, after being stabbed and having a kidney
removed in the hospital, had failed to exhaust; the PLRA “does not ...
excuse prompt filing of prison administrative remedies because of mental
or emotional injury.”[45]

A prisoner missed the 48-hour grievance filing deadline
because he needed the names of the officers involved in the incident and
it took him a week to obtain this information; his case was dismissed for
failure to exhaust.[46]

A Trap for the Unwary

In a case involving employment discrimination, the US
Supreme Court warned that “technicalities are particularly inappropriate
in a statutory scheme in which laymen, unassisted by trained lawyers, initiate
the process.”[47]
But under the PLRA, it is common for courts to conclude that prisoners have
failed to exhaust because they made minor technical errors in the grievance
process.

Jeanne Woodford, former director of the California
Department of Corrections, described to Human Rights Watch some of the
difficulties prisoners have in navigating the grievance system in California
state prisons:

Their appeal gets screened out for lack of documentation
and they’re unable to get the documentation. I think a lot of them have
trouble once the appeal is screened out—maybe not understanding why the
appeal was screened out.... For example, you’re only supposed to put one
issue on an appeal, and some inmates put multiple issues on an appeal, because
it may have all occurred in the same incident, and the inmate doesn’t
understand that.[48]

Woodford added that at some California prisons, as many as
half of all grievance appeals are “screened out” because of
technical errors by prisoners.[49]

Cases in which prisoners have had their cases dismissed
because of technical errors in the grievance process are common:

A prisoner who was stabbed in
the eye had his lawsuit dismissed because, while he had properly filed his
original grievance, he failed to indicate whether he wished to appeal when
this grievance was denied.[50]

A prisoner alleging that he
had received inadequate dental care had his grievance rejected because he
appended seven pages of information regarding his dental needs; when the
prisoner then filed suit over inadequate dental care, the case was
dismissed for non-exhaustion.[51]

A prisoner who alleged that he was attacked by other
prisoners, was left for 12 hours without medical attention, was in a coma
for days and in the hospital for months, and suffered severe permanent
injuries including cognitive impairment and memory loss, had his lawsuit
dismissed because he appealed his grievance too soon.[52]

Many cases are dismissed because the prisoner used the wrong
form, or wrote to the wrong entity within the prison system. Cases have been
dismissed, in whole or in part, because the prisoner:

Submitted a form to the
“inmate appeals branch” rather than to the “appeals
coordinator.”[53]

Filed an “administrative
appeal” rather than a “disciplinary appeal.”[54]

Wrote directly to the
grievance body rather than filing a “service request” form.[55]

Sent appeal documents to the secretary
of the Department of Corrections rather than to the secretary’s
Office of Inmate Grievances and Appeals.[56]

Filed a new grievance rather than seeking reinstatement of
a previous grievance (the court characterized its dismissal of the case as
“hyper-technical” but required by the PLRA).[57]

No Exceptions, No Excuses

Courts have not been receptive to the argument that the
exhaustion requirement should be excused, even when there is good cause for the
prisoner’s failure to pursue remedies within the prison grievance system.
Among the justifications for non-exhaustion courts have rejected are:

One scholar, after surveying cases decided under the
PLRA’s exhaustion requirement, summarized her findings: “Inmates
who filed only the first level of grievance, or who failed to comply with a
stringent time limit (sometimes even because they were hospitalized for the
injury motivating the lawsuit), or who simply wrote a letter to prison
authorities rather than filling out the requisite form, are seeing their
constitutional cases dismissed for failure to exhaust.”[66] Indeed,
the PLRA is not limited to constitutional claims, but restricts
prisoners’ ability to bring claims under other laws as well.

In a case involving the exhaustion requirement, the US
Supreme Court said that “[b]eyond doubt, Congress enacted [the PLRA] to
reduce the quantity and improve the quality of prisoner suits.”[67]
A central argument of the PLRA’s supporters was that the law would filter
out only frivolous or plainly meritless prisoner suits, but would not affect
those that raised serious issues. As Senator Orrin Hatch put it, “I do
not want to prevent inmates from raising legitimate claims. This legislation
will not prevent those claims from being raised. The legislation will, however,
go far in preventing inmates from abusing the Federal judicial system.”[68]
Representative Charles Canady sounded a similar note: “These reasonable
requirements will not impede meritorious claims by inmates but will greatly
discourage claims that are without merit.”[69]

But the exhaustion requirement has nothing to do with the
merit of the prisoner’s underlying claim. It requires dismissal of the
case—regardless of its merit—if the prisoner has failed to comply
with the procedural requirements, however petty, of the prison grievance
regime. The legality or illegality of the conduct the prisoner is complaining
of, or the magnitude of the harm she has suffered, simply do not matter. As one
scholar summarized the first several years of the PLRA, “inmates who
experience even grievous loss because of unconstitutional misbehavior by prison
and jail authorities will nonetheless lose cases they once would have won, if
they fail to comply with technicalities of administrative exhaustion.”[70]

Case Study: Immunizing Rape

Sexual abuse of female prisoners by male prison staff is a
well-documented phenomenon in US prisons.[71] In January 2003,
16 women prisoners filed suit alleging an ongoing pattern of rape and sexual
abuse by staff of the New York State Department of Correctional Services
(DOCS). The lawsuit, detailing instances of forcible rape, coerced sexual
activity, oral and anal sodomy, and forced pregnancies, asked the court to
intervene to halt the ongoing sexual abuse.[72]

Rather than address the merits of the women’s claims,
the federal court hearing the case took nearly five years to first consider
whether they had exhausted administrative remedies as required by the PLRA. In
2007 the court dismissed all of the women’s claims for injunctive relief—that
is, for an order to the prison system to remedy the ongoing abuse. The court
acknowledged that some of the women had complained about the abuse to the New
York state prison system’s inspector general; others had complained to
the supervisor of the officer who had abused them; others still had spoken
about the abuse to a prison official whom they felt comfortable approaching. One
woman had filed a formal grievance and pursued it through all three levels of
the grievance system, but the judge ruled that that was not sufficient because,
he said, she had not named all supervisory defendants or linked their actions
to her abuse by a particular officer, even though she had identified the core
failing in the lawsuit: officers about whom there are repeated credible
complaints of sexual abuse are nonetheless permitted to continue to guard women
prisoners. As a result, the court ruled that she could not challenge the
supervisory defendants’ failings in supervision, investigation, and
discipline of staff.

The court ruled that none of the actions taken by the women
to alert DOCS to the ongoing sexual abuse were sufficient to satisfy the PLRA,
and so all their claims for injunctive relief were dismissed:

The evidence does not demonstrate that Plaintiffs' efforts
at grieving properly were thwarted, but rather shows that they merely selected to
pursue informal avenues instead of the formal grievance procedure.... One cannot exhaust all
administrative remedies by merely pursuing an informal avenue over the formal
grievance procedure. Thus, because Plaintiffs ... did not complete the
three-step grievance procedure, they have not properly exhausted all of their
administrative remedies.[73]

Dori Lewis, one of the lawyers representing the women,
explained to Human Rights Watch that prison officials had previously taken the
position that prisoners complaining about staff sexual abuse were not required
to file a grievance:

With respect to staff sexual assault, DOCS had told women
prisoners that they could complain to anyone with whom they feel comfortable,
and their complaint would be forwarded to the inspector general’s office.
They made clear that the inspector general’s office, and only the inspector
general’s office, had authority to take action. And in spite of that,
they have come into court and argued that women prisoners needed to file
grievances.[74]

Lisa Freeman, Lewis’s co-counsel, summed up the effect
of the PLRA in the New York case: “It allows for the ongoing problem of
staff sexual abuse to continue unabated.”[75] Lewis
elaborated,

For other women in prison, it reinforces that there’s
no point in coming forward about these kinds of complaints. Women prisoners
already think that their complaints of staff sexual abuse will accomplish
nothing unless they have physical proof of the complaint. Now they’re
being told that even when women have come forward, even when they may have had
physical evidence or other strong evidence, it’s still not good enough to
get into court because they didn’t navigate this opaque and complex
system.[76]

Dangers of Reporting Rape in Prison

When a prisoner has been sexually assaulted by another
prisoner, to complain to prison staff is to risk violent retaliation, either
by the original assailant or by other prisoners. One prisoner explained to
Human Rights Watch:

The first time [I was raped] I told on my attackers. All [the
authorities] did was moved me from one facility to another. And I saw my
attacker again not too long after I tolded on him. Then I paid for it.
Because I tolded on him, he got even with me. So after that, I would not, did
not tell again.[77]

For a male prisoner, to be known as a rape victim
(“punk”) dramatically increases the risk of future assault, and
to be known as someone who informs on prisoners to the authorities (a
“snitch”) invites attack by other prisoners. Thus, a prisoner who
complains to staff about being raped is doubly at risk:

[T]he first time I was raped, I did the right thing. I
went to an officer, told him what happened, got the rectal check, the whole
works. Results? I get shipped to [another prison]. Six months later, same
dude that raped me is out of seg[regation] and on the same wing as I am. I
have to deal with 2 jackets now: snitch & punk. I ... had to think real
fast to stay alive. This was my first 2 years in the system. After that I
knew better.[78]

Case Study: No Remedy for Rape Resulting in HIV Infection

Keith DeBlasio was incarcerated in a federal prison for
credit card fraud and other white collar crimes when another prisoner, a known
leader of a prison gang, began threatening him. DeBlasio repeatedly sought
protection from prison staff, but no action was taken. The gang leader raped
him on a number of occasions, which resulted in DeBlasio contracting HIV.

DeBlasio filed grievances about the assaults. Although his
initial grievances were timely filed, his subsequent appeals were rejected as
untimely or otherwise defective. As a result, DeBlasio was deemed to have
failed to exhaust administrative remedies, a prerequisite to filing a lawsuit
to recover compensation for his injuries.

Now out of prison, DeBlasio is chronically ill with HIV
disease:

I get $637 a month from the government because of my
disability. And that doesn’t even pay the bills. And if it wasn’t
for my family, I’d be out on the street. And they did this.... I should
have had some way to have something—to go after damages. This was an
individual they knew was a sexual predator, and HIV positive.... You cannot
tell me it was not the responsibility of the institution to have protected me.[79]

DeBlasio does not believe that the PLRA was intended to
prevent prisoners in his situation from filing suit:

The whole purpose of the PLRA, and this is in the congressional
record, was to alleviate some of the frivolous lawsuits.... At no point in time
can somebody claiming a sexual assault or physical assault be considered frivolous....
In a situation where my entire ability to support myself, not to mention my
health being so bad that my mother had to hold the glass and put the straw into
my mouth—this is a situation where there’s no doubt that I should
be compensated. But these are the types of things that because of the PLRA that
they manage to keep out of court.[80]

DeBlasio summed up his situation: “What was a sentence
for a white collar crime that should have ended many years ago will never end. I
got a life sentence.”[81]

Expecting a prisoner to commence the grievance process
within a few days of experiencing rape, assault, or a similar event is
unrealistic in light of the dynamics of trauma. Terry Kupers, a psychiatrist
who has interviewed and evaluated more than a thousand prisoners, explained:

Trauma has specific dynamics of its own. The person goes
into a very dysfunctional state right after the trauma. They’re flooded
with emotions. What we generally find is a dysregulation of emotions and
cognition that lasts for many days. This is the period when there are intrusive
symptoms, flashbacks, et cetera. And in that state a person is unable to carry
out an organized task. And that happens to be the same timeline as the deadline
for the internal grievances.... Particularly when you’re looking at
survivors of sexual assault, they don’t do anything for a long time. They
mull it over. They tend to withdraw and be isolated. And they tend to be
flooded with emotions, and for instance, experience shame. And reporting in a
formal way is the last thing on their mind.[82]

The time frame of the grievance process basically calls for
people who are suffering this very traumatic injury to come forward and complain
about it in a timely fashion.... In the community there’s a complete
understanding that victims of sexual abuse don’t come forward with an
immediate outcry in most instances.[83]

VI. The Physical Injury Requirement

In 2004, images of sadistic abuse at
Iraq’s Abu Ghraib prison shocked the world. Photos showed naked prisoners
terrorized by snarling dogs, hooded prisoners made to stand in "stress
positions," and prisoners piled naked into pyramids for the amusement of
guards. If those abuses had occurred in a US prison, compensation for the
victims would be barred by the "physical injury" requirement of the
PLRA.[84]

The general rule in US law is that mental or emotional
injury to a person, if caused intentionally, is harm for which monetary
compensation can be claimed (“compensable” in legal terminology). For
example, victims of verbal sexual or racial harassment in the workplace can
recover money damages for the resulting emotional distress, even if they suffer
no physical injury.

The PLRA abolishes this rule for prisoners. It provides that
a prisoner may not sue “for mental or emotional injury suffered while in
custody without a prior showing of physical injury.”[85] The
physical injury requirement simply declares a certain category of injury to be
noncompensable, without regard to the merit of the prisoner’s claim or
the culpability of the defendant. Thus, even a prisoner who is the victim of
intentionally abusive staff conduct, resulting in extreme emotional distress,
cannot recover compensation. As one federal judge put it,

[I]magine a
sadistic prison guard who tortures inmates by carrying out fake executions—holding
an unloaded gun to a prisoner's head and pulling the trigger, or staging a mock
execution in a nearby cell, with shots and screams, and a body bag being taken
out (within earshot and sight of the target prisoner). The emotional harm could
be catastrophic but would be non-compensable [under the PRLA].[86]

One witness testifying before the Commission on Safety and
Abuse in America’s Prisons suggested that this provision of the PLRA
“seems to make it national policy ... that mental torture is not
actionable.”[87]
And indeed, a recent study of 279 survivors of torture in the former Yugoslavia
concluded that “psychological stressorscannot be easily
distinguished from physical torture in termsof their relative
psychological impact.” The study’s authors identified “sham
executions, threats of rape, sexual advances, threatsagainst self
or family, witnessing the torture of others, humiliatingtreatment,
isolation, deprivation of urination/defecation, blindfolding,sleep
deprivation, and certain forced stress positions” as forms of abuse that
“seemedto be as distressing as most physical torture
stressors.”[88]
Many of these abuses have been documented in US prisons, and under the PLRA,
all of them would be considered “mental or emotional injury” that
would not be compensable without a “prior showing of physical
injury.”

The physical injury provision of the PLRA is
particularly anomalous in light of the fact that, under US criminal law, many
acts that produce only “mental or emotional injury” are treated as
serious crimes. For example, a person may be convicted of assault on a federal
officer and sentenced to prison even if there is no physical contact, as long
as there is “such a threat or display of physical aggression
toward the officer as to inspire fear of pain, bodily harm, or death.”[89]
However, if the same conduct were directed toward a prisoner by a corrections
officer, the PLRA’s physical injury requirement would bar any
compensation.

Indeed, some courts have ruled that the PLRA bars
compensation for even the most extreme mistreatment of prisoners. Stephen
Jarriett filed a lawsuit alleging that prison officials forced him to stand in
a two-and-a-half foot square cage for about 13 hours, naked for the first eight
to ten hours, and unable to sit for more than 30 or 40 minutes of this time. He
was in acute pain from a clearly visible swelling in his leg from a previous
injury and repeatedly asked to see a doctor, but his requests were ignored. The
court ruled that the PLRA barred compensation for this treatment because any
physical injury was “de minimis,” a legal term meaning too trivial
to deserve the court’s attention.[90]

Although the plain language of the PLRA suggests that any
“physical injury” is enough to support compensation, many courts
have ruled that injuries they deem minor do not qualify. Conditions courts have
found insufficient to satisfy the PLRA’s physical injury requirement
include:

Under the physical injury requirement, courts have also
ruled that prisoners who suffer violation of their constitutional right to
practice their religion cannot recover compensation for that violation.[96]
And at least one court has ruled that racially discriminatory treatment by
prison staff is a “mental or emotional injury” for which the PLRA
bars compensation.[97]
Before enactment of the PLRA, prisoners were able to recover damages both for violation
of their religious rights and for racial discrimination.[98]

Several courts have relied on this provision of the PLRA to dismiss prisoner
claims of sexual abuse by staff. The following claims have been dismissed under
the physical injury requirement:

A prisoner who alleged that a female
corrections officer had grabbed his penis and held it in her hand.[99]

A prisoner who alleged that a prison
employee reached between his legs and rubbed his genitals.[100]

Prisoners who alleged that an officer had
fondled their genitals and “sexually battered them by sodomy;” the
court dismissed the case because “the plaintiffs do not make any claim of
physical injury beyond the bare allegation of sexual assault.”[101]

Two female prisoners who alleged that they
were strip-searched by male guards. After the incident, one woman began to
suffer migraine headaches, while the other attempted suicide by drug overdose. The
court ruled that the women had not satisfied the PLRA’s physical injury
requirement; “a few hours of lassitude and nausea and the discomfort of
having her stomach pumped is no more than a de minimis physical injury.”[102]

Courts have also ruled that people who are wrongly
imprisoned, or wrongly placed in segregation or solitary confinement, cannot
recover compensation due to the physical injury requirement. For example,
Christopher Brumett alleged that he was illegally jailed for approximately six
months; the court ruled that the PLRA barred any compensation because he did
not allege a physical injury.[103]

The PLRA bars damages even for prisoners placed in
segregation due to intentional staff misconduct. A court specifically found
that prison staff unconstitutionally retaliated against Jeffery Royal for his
complaints about inadequate medical care by placing him in segregation for 60
days. Nevertheless, because Royal did not allege any physical injury as a
result of this violation of his rights, he could recover only $1 in damages.[104]

According to Dr. Kupers, confinement in segregation, while
not compensable under the PLRA, can result in injuries that are very real:

What we know is that long-term isolated confinement causes
difficulty thinking, cognitive impairment, and difficulty with memory. A very
frequent, almost universal symptom is that they’ve stopped reading,
because it’s useless to read—they can’t remember what they
read three pages ago.... I’ve never met anybody who hasn’t been
damaged by long-term confinement in segregation.[105]

Similarly, in a 2005 filing in the US Supreme Court, a group
of psychologists and psychiatrists surveyed the literature on isolated
confinement and concluded that “[n]o study of the effects of solitary or
supermax-like confinement that lasted longer than 60 days failed to find
evidence of negative psychological effects.”[106]

Case Study: No Remedy for a Year in Solitary Confinement

Alex Pearson was just two days away from transfer out of
Tamms Correctional Center, Illinois’s most restrictive prison, when he
was found guilty of a disciplinary infraction. This infraction halted his
transfer to a less restrictive prison and extended his time at Tamms by more
than a year. A court described conditions at Tamms as follows:

In contrast to inmates in a typical “general
population” prison, inmates in Tamms have no contact with other inmates. Instead,
they are housed in single cells, which they leave for only an hour each day for
“individualized recreation” in a 30-foot long, 15-foot wide
partially-covered cement enclosure. Inmates at Tamms do not hold prison jobs,
do not interact with other prisoners, and are allowed contact with visitors, if
at all, only through a glass partition while in restraints.[107]

Pearson described to Human Rights Watch the effects of his
extra year at Tamms:

I was at my lowest I could possibly be. I was super
stressed out.... I couldn’t write, I couldn’t eat—it took me
at least six months to where I could gain my full functioning back. It affected
me physically, and it also affected me emotionally in terms of my relationship
with my family. It took me six months to get up the strength to write to them
and tell them I wouldn’t be leaving [Tamms].[108]

With the assistance of counsel, Pearson filed a civil
lawsuit, and a jury found that prison staff had unlawfully given him the
infraction in retaliation for complaining about conditions and for refusing to
act as an informant. However, when Pearson tried to recover compensation for
the harsh conditions he had endured at Tamms as a result of the retaliatory
infraction, the court ruled that recovery was barred by the PLRA because
Pearson had suffered no physical injury. Although Pearson testified that during
the additional year at Tamms he had become depressed and lost approximately 50
pounds, the court ruled that this did not constitute a physical injury that
would allow him to recover compensation.[109]

Pearson described the lasting effects of this experience
with the PLRA:

You want to think that the justice system works for those
who are in the right.... [But] if you are a prisoner, no matter what you do,
even if you’re right, the justice system is still not going to
acknowledge you or treat you like someone else whose rights have been violated.
They’re not going to treat you the way they would treat an average
person, just because you are a prisoner.[110]

VII. The PLRA’s Application to Children

The chief argument of the PLRA’s Congressional
sponsors was that prisoners were inundating the courts with lawsuits, many of
them frivolous and malicious. But incarcerated children filed very few lawsuits
even before the PLRA’s passage.[111] Nevertheless, the
PLRA applies with equal force to adult prisoners and to children—both
children tried as adults and sent to adult prison, and those detained in the
juvenile justice system.[112]

While incarcerated children do not often file lawsuits, they
are sometimes the victims of serious mistreatment and abuse. For more than a
decade Human Rights Watch has documented physical and sexual abuse, as well as
unhealthy and inhumane conditions of confinement, suffered by incarcerated
children in the United States.[113]

In February 2007 a report revealed that two high-ranking
administrators at the West Texas State School, a juvenile facility operated by
the Texas Youth Commission (TYC), had engaged in sexual conduct with several
incarcerated children.[114]
Under the PLRA, detained children wishing to file a lawsuit over such abuse
must first take their complaints all the way through the facility’s
grievance system. But the same report found that “[y]outh and employee
grievance programs at the facility were ineffective and sabotaged.”[115]

The following month, the US Department of Justice Civil
Rights Division notified the governor of Texas of its conclusion that staff at
TYC’s Evins Regional Juvenile Center failed to protect residents from
abuse by staff and violence by other children, in violation of the US
Constitution.[116]
The Justice Department characterized the grievance system at Evins as
“dysfunctional,” adding that “[o]ne youth reported that he
was sitting at a table writing a grievance when a staff member came by and took
it away from him.”[117]

A March 2007 report by the Texas state auditor similarly
concluded that “TYC’s youth grievance process does not ensure that
all grievances are received and investigated appropriately and in a timely
manner.”[118]
The auditor noted substantial delays in processing grievances; policies that
allowed staff members to investigate grievances filed against themselves; and
policies allowing youth to be punished for filing grievances deemed frivolous
or excessive by staff.[119]

Deborah P., age 18, has been incarcerated in juvenile
facilities operated by the Texas Youth Commission since she was 14 years old. She
explained,

When I first came here it was very hard for me to actually
fill out a grievance because I never went to school, and my grade level was so
low. When I finally did fill out a grievance, they didn’t accept it
because of my handwriting.[120]

Deborah P. also said that other youth in the facility do not
know how to use the grievance system.[121]

The grievance exhaustion requirement has significantly
interfered with the ability of adult prisoners to protect their rights in court
(seesection V, above). But it has had an even more pronounced effect on
incarcerated children because of their greater vulnerability and more limited
ability to follow complex and multi-step grievance processes.

Former Corrections Director Woodford told Human Rights Watch
of her observations in California: “I’ve been in some of the county
facilities where I’ve been very concerned about the conditions [for
children] ... I think they’re particularly vulnerable, and [have] an
inability to reach outside the prison to get to [lawyers] and others, that we
all need to be concerned about.” Woodford described a visit to one
juvenile facility (which she preferred not to name) where “[t]he staff couldn’t
clearly articulate to me what the grievance system was.” She believes
that children in custody have an especially difficult time with grievances: “I
think the rules are very complicated, and I think the literacy among juveniles
is usually pretty poor. The ability to find people to help you seems to have
been more difficult in the juvenile system.”[122]

Orlando Martinez has been director of juvenile corrections
for the states of Georgia and Colorado. He too told Human Rights Watch that
incarcerated children have difficulty exhausting multi-step grievance systems:

I don’t know if they have the reading skills, the
language skills, or conceptualization skills, maturity, to be able to follow
it. I think they have a short attention span. If it’s not resolved right
away, they’re not going to pursue it.... They have learning disabilities,
they have mental health issues—their needs are so great.[123]

Kim Brooks Tandy is a lawyer and executive director at the
Children’s Law Center in Covington, Kentucky. She explained the
difficulty of getting incarcerated children to navigate, or even understand,
multi-step grievance systems: “The concept of ‘exhaustion’ is
almost nonexistent with my clients. They are confused by language on grievance
forms and do not understand why there are multiple levels at the institution
and through the Chief Inspector’s office which must be completed.”[124]

Psychiatrist Terry Kupers explained to Human Rights Watch
why it is even more difficult for children to successfully navigate a prison
grievance system than for adult prisoners: “On average, juveniles are
more impulsive, less capable of planning a course of action and taking steps,
particularly when there are timelines for taking those steps.... So
they’re just less capable, on average, than an adult of doing
that.”[125]

Despite these limitations, courts have enforced the
exhaustion requirement against children as strictly as they have against adult
prisoners. In one case in Indiana, a detained juvenile’s lawsuit alleging
that he had been beaten was dismissed because he had not exhausted the
facility’s five-level grievance system. Although it was undisputed that
immediately after the beating he had no access to writing materials and was
held in segregation until after the deadline for filing a grievance had passed,
the court stated without explanation that “if he had submitted a
grievance after his release from segregation ... it would have been considered
[by facility officials], even though submitted after the period prescribed for
the filing of a grievance.”[126]

In most other settings, society recognizes the limited
abilities of children by permitting (and in many cases requiring) their parents
or other adults to act on their behalf. For example, a minor cannot bring or
defend a lawsuit in US federal court without assistance from a guardian or
other adult.[127]
However, federal courts have ruled that the efforts of parents or other adults
on behalf of incarcerated children do not satisfy the PLRA’s exhaustion
requirement.[128]

S.Z., a resident in an Indiana juvenile detention facility, was raped and repeatedly beaten by other detainees over a period of
months. On one occasion he was beaten with “padlock-laden socks”;
on another day a beating triggered a seizure-like reaction. Some staff
allegedly encouraged the beatings and would arrange fights between detainees,
sometimes handcuffing one resident so that others could beat him.[129]

S.Z.’s mother learned of the ongoing
abuse of her son and frantically tried to protect him. She complained to staff
at the facility, wrote to the facility superintendent, wrote to juvenile court
judges, contacted the deputy director of the Department of Corrections, and
eventually contacted the governor of Indiana.[130]

However, when S.Z. filed a lawsuit to recover
compensation for his injuries, the case was dismissed on the ground that his
mother’s actions did not satisfy the PLRA’s exhaustion requirement:
“[H]er efforts cannot be said to have satisfied [S.Z.’s] obligation
under the Prison Litigation Reform Act to exhaust available administrative
remedies, and [S.Z.] did not satisfy that obligation either.”[131]
The grievance system had five steps and would have required S.Z. to file his
initial grievance within 48 hours of being raped or beaten.[132]

In another case, a juvenile filed a lawsuit alleging that
staff had hit him, shocked him with a stun gun, and then led him down the hall
by his testicles to an isolation cell. Although his lawyer had discussed the
incident with the jail administrator, the Federal Bureau of Investigation, the
Kentucky State Police, and the Kentucky Department of Juvenile Justice, the
court ruled that this did not satisfy the PLRA and the suit was dismissed for
failure to exhaust.[133]

There have also been cases of correctional officials
interfering with efforts to help incarcerated youth file grievances. Kim Brooks
Tandy told Human Rights Watch of a lawyer from her office who helped two youths
complete grievance forms and explained exhaustion requirements to them; both
youths had been assaulted by staff and wanted to take legal action. After the
lawyer provided this assistance, correctional officials barred her from
returning to the facility, and asserted in court papers that she was
“destabiliz[ing] the ... population” by “violat[ing] an
unwritten ... regulation prohibiting attorneys from actively participating in
the grievance process.” A federal judge ordered that the attorney be
allowed to enter the facility and meet with detained children, but specified
that she “is not permitted to write the grievance application, request
the processing of, or process the grievance application.”[134]

Attorney Dori Lewis told Human Rights Watch that the PLRA
has made it even more difficult to vindicate the legal rights of detained youth:
“The PLRA is making litigation on behalf of juveniles extremely
difficult. Finding kids who are willing to come forward and file a complaint
inside the institution, while [they are] still there, where everyone knows
about it, is almost impossible.”[135]

Former juvenile corrections director Orlando Martinez
believes that applying the PLRA to incarcerated youth fails to recognize
important differences between children and adults:

It’s almost like the public policy issue is that kids
are not like adults, except when it comes to crime. They can’t marry,
they can’t sign contracts, they can’t drink, they can’t vote,
until they’re 18. But when it comes to crime, the PLRA just assumes that
they’ll be able to follow the same process as an adult. But all the
scientific research and studies of the brain we have indicate that they don’t
mature until they’re age 25.... It really calls into the question what
the purpose of the juvenile court is.... The juvenile court is there to protect
and help this kid mature and live crime free. The PLRA is not consistent with
that philosophy—it’s a very criminal justice process.[136]

VIII. The PLRA’s Effect on Prisoners’
Access to the Courts

The effect of the PLRA on prisoners’ access to the
courts was swift and devastating. Between 1995 and 1997, federal civil rights
filings by prisoners fell 33 percent, despite the fact that the number of
incarcerated persons had grown by 10 percent in the same period.[137]
By 2001 prisoner filings were down 43 percent from their 1995 level, despite a
23 percent increase in the incarcerated population.[138] By
2006, the number of prisoner lawsuits filed per thousand prisoners had fallen
60 percent since 1995.[139]

If the effect of the PLRA were to selectively discourage the
filing of frivolous or meritless lawsuits, as its sponsors predicted, then we
would expect to find prisoners winning a larger percentage of their lawsuits
after the law’s enactment than they did before. But the most
comprehensive study to date shows just the opposite: since passage of the PLRA,
prisoners not only are filing fewer lawsuits, but also are succeeding in a
smaller proportion of the cases they do file.[140] This
strongly suggests that, rather than filtering out meritless lawsuits, the PLRA
has simply tilted the playing field against prisoners across the board. The
author of a comprehensive study on the impact of the act concludes that
“the PLRA’s new decision standards have imposed new and very high
hurdles so that even constitutionally meritorious cases are often thrown out of
court.”[141]

The PLRA has also apparently resulted in a significant
decline in judicial oversight of conditions in correctional facilities. Between
1995 and 2000, the number of states with less than 10 percent of their prison
populations under court supervision more than doubled, from 12 to 28.[142]
After tracing the history of US prison litigation from the 1960s to the
present, one scholar recently concluded that “the PLRA has contributed to
a major decline in the regulation of prisons and jails by court order.”[143]
In the absence of other methods of oversight, this decreased monitoring by the
courts is cause for concern.

Former director Woodford told Human Rights Watch that she
believes the PLRA has had a negative effect on conditions in US prisons:

I do think the PLRA does need to be reformed. I think that
there’s prison experts around the country who would agree with that....
I’m told that many people in [the American Correctional Association]
believe that as well. That they’re starting to see abuses.... A lot of
the corrections professionals were telling me that they had concerns that a lot
of the steps forward they’d made in Texas were reverting because of the
PLRA. And I can see that happening in California too.[144]

Former director Martinez similarly believes that the
obstacles erected by the PLRA have a negative effect on conditions for
incarcerated youth: “I think they need advocacy from the outside. I think
that without having either legal advocacy or other advocacy, the conditions at
these facilities will continue to deteriorate.”[145]

IX. The PLRA Violates Human Rights

Under the US Constitution, treaties signed and ratified by
the United States “shall be the supreme law of the land.”[146]
The United States has signed and ratified a number of human rights treaties,
including the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention against Torture), the International
Covenant on Civil and Political Rights (ICCPR), and the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The
United States has also signed, but not yet ratified, the Convention on the
Rights of the Child (CRC).[147]

A bedrock principle of international human rights law is the
equality of all persons before the law. Thus the ICCPR provides:

All persons are equal before the law and are entitled
without any discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all persons equal
and effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.[148]

The ICCPR specifically provides that “[a]ll persons
shall be equal before the courts and tribunals.”[149] The
PLRA’s restrictions on court access, which apply only to prisoners, are
fundamentally at odds with these requirements.

A second foundational principle of human rights law relevant
here is that persons whose rights have been violated are entitled to an
effective remedy for that violation. The ICCPR requires that ratifying
countries “ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that
the violation has been committed by persons acting in an official capacity.”[150]
The Convention against Torture similarly requires each ratifying country to
“ensure in its legal system that the victim of an act of torture obtains
redress and has an enforceable right to fair and adequate compensation.”[151]
ICERD requires that victims of racial discrimination have “the right to
seek ... just and adequate reparation or satisfaction for any damage suffered
as a result of such discrimination.”[152]

As this report makes clear, the PLRA in many cases operates
to deprive prisoners of an effective remedy—or indeed, any remedy at all—for
violations of their rights. Prisoners who fail to comply with all the
requirements of their institution’s grievance system may forfeit their
right to compensation even for extremely serious injuries. And the PLRA’s
physical injury requirement means that even prisoners who are the victims of
intentional staff abuse will often be denied a remedy.

The Committee Against Torture, the body of independent
experts that monitors state parties’ compliance with the Convention against
Torture, most recently reviewed US compliance with the Convention in 2006. In
its conclusions and recommendations, the committee recognized that the
PLRA’s physical injury requirement contravenes article 14 of the treaty
(requiring redress for victims of torture), and called for its repeal:

The Committee is concerned by section 1997e(e) of the 1995
Prison Litigation Reform Act which provides “that no federal civil action
may be brought by a prisoner for mental or emotional injury suffered while in custody
without a prior showing of physical injury.” (article 14).
The State party should not limit the right of victims to bring civil actions
and amend the Prison Litigation Reform Act accordingly.[153]

Finally, human rights treaties recognize the special status
and needs of children. The ICCPR provides:

Every child shall have, without any discrimination as to
race, colour, sex, language, religion, national or social origin, property or
birth, the right to such measures of protection as are required by his status
as a minor, on the part of his family, society and the State.[154]

The treaty also requires that “juvenile offenders
shall be segregated from adults and be accorded treatment appropriate to their
age and legal status,”[155]
and that when juveniles are accused of crime, “the procedure shall be
such as will take account of their age and the desirability of promoting their
rehabilitation.”[156]

In its General Comment 17, the Human Rights Committee
reiterated:

[I]f lawfully deprived of their liberty,
accused juvenile persons shall be separated from adults and are entitled to be
brought as speedily as possible for adjudication; in turn, convicted juvenile
offenders shall be subject to a penitentiary system that involves segregation
from adults and is appropriate to their age and legal status, the aim being to
foster reformation and social rehabilitation.[157]

The Convention on the Rights of the Child similarly requires
that:

Every child deprived of liberty shall be treated with
humanity and respect for the inherent dignity of the human person, and in a
manner which takes into account the needs of persons of his or her age....[158]

Every child deprived of his or her liberty shall have the
right to prompt access to legal and other appropriate assistance[.][159]

The PLRA’s application of the same restrictions to
detained children as to adult prisoners cannot be reconciled with this
well-established recognition of the special needs and status of children, and
the obligation to provide detained children with treatment “appropriate
to their age and legal status.”

X. Calls for Reform

As the disturbing effects of the PLRA have come to light,
calls to reform the law have come from a variety of quarters. Concerned with
the PLRA’s negative effects on the health and safety of incarcerated
persons, Human Rights Watch consistently has called for its reform or repeal
since its enactment in 1996.[160]

In February 2007 the American Bar Association (ABA) passed a
resolution urging governments at all levels in the United States to
“ensure that prisoners are afforded meaningful access to the judicial
process to vindicate their constitutional and other legal rights and are
subject to procedures applicable to the general public when bringing
lawsuits.”[161]
The ABA specifically called for reform of the PLRA in several respects,
including repeal of the physical injury requirement, amendment of the
exhaustion requirement, and repeal of the provisions extending the law to
children.[162]

The Commission on Safety and Abuse in America’s
Prisons[163]
similarly recommended significant reform of the PLRA, including elimination of
the physical injury requirement and modification of the exhaustion requirement
to require exhaustion only of grievance systems that meet minimal standards of
fairness.[164]
In a November 2007 letter to Congress, the commission’s co-chairs
summarized its conclusions regarding the PLRA:

Our Commission concluded that there are aspects of the PLRA
that, in effect if not in intention, present serious obstacles to the federal
courts’ ability to deliver justice and protect prisoners who are in
danger or subject to abuse....

The Commission reached the conclusion that the PLRA’s
physical injury requirement should be repealed. The requirement stands as an
unconscionable bar to fully remedying—and thus, hopefully, preventing—a
range of violations of constitutional rights. It is a blunt tool that does not
differentiate in any way between meritorious and non-meritorious claims. Rather,
it discourages prisoners with very serious constitutional claims from bringing
those claims to light in a federal court. Moreover, it does so in a way that
discriminates for no valid purpose—and to much harmful effect—against
prisoners....

The Commission also recognized the importance of amending
the PLRA’s exhaustion rules. The exhaustion rule, like the physical
injury requirement, poses far too high a barrier to a federal court hearing of
federal law violations. Its breadth and inflexibility discriminates against
prisoners among other civil rights litigants and results in the suppression of
meritorious claims no less than non-meritorious claims, indeed perhaps even
more so.[165]

Most recently, in January 2008 the chairman of the National
Prison Rape Elimination Commission[166]
wrote to Congress to express the Commission’s view “that certain
PLRA provisions frustrate Congress’s goal of eliminating sexual abuse in
US prisons, jails, and detention centers.”[167]
The chairman explained,

Medical professionals, corrections experts, and advocates
have provided us with extensive information indicating that the PLRA’s
requirement that a prisoner successfully exhaust all available administrative
remedies before filing suit has undermined the ability of sexual assault
victims to gain access to the crucial external oversight of the judicial branch—and
as a result, has obstructed their ability to obtain the relief and redress to
which they may be legally entitled. Because of the emotional trauma and fear of
retaliation or repeated abuse that many incarcerated rape victims experience,
as well as the lack of confidentiality in many administrative grievance
procedures, many victims find it extremely difficult—if not impossible—to
meet the short timetables of administrative procedures.

Additionally, we have learned that the physical injury
requirement of the PLRA fails to take into account the emotional and
psychological damage incurred by victims of sexual assault and abuse, even in
the absence of actual or obvious physical injury. Indeed, we were shocked to
learn that there have even been cases in which courts have ruled that actual
rape does not constitute physical injury under the PLRA. Very real non-physical
harms can result from a wide array of sexual abuse situations in prisons and
jails, such as explicit sexual gestures and harassing language, groping of
breasts and touching of genitals, or being forced to masturbate another or in
front of another. Additionally, sexual assault victims often suffer from rape
trauma syndrome, a type of post traumatic stress disorder; and a range of
psychological distress (fear, emotional numbness, flashbacks, nightmares,
obsessive thoughts, major depressive episodes, and anger) can occur months or
years after an incident. We have become distressingly confident that victims of
sexual assault are losing vital protections and avenues for relief as a result
of the legislative provision requiring an actual physical injury.[168]

XI. Conclusion

The PLRA has had a devastating effect on the ability of
incarcerated persons to protect their health and safety and vindicate other
fundamental rights. While justified by the PLRA’s sponsors as necessary
to prevent frivolous lawsuits, the requirement that prisoners first take their
complaints through the facility’s grievance system, no matter how
complicated or multilayered the process or how short the deadlines, has barred
relief for prisoner claims regardless of their merit. The provision prohibiting
compensation for “mental or emotional injury” unless accompanied by
physical injury has placed an entire category of improper and even abusive
staff behavior beyond the reach of the law. And the PLRA’s application to
children has made it even more difficult for courts to protect the rights of
this vulnerable population, even in cases of ongoing physical or sexual abuse.

Even some judges who stand to benefit from reduced workload
as a result of the PLRA have found the law unhelpful. One federal appellate
judge expressed his frustration:

I ... wonder aloud why this sort of
administrative/procedural detail under the PLRA has to be so complicated. I'd
say that when an experienced district judge ... is reversed three times in the
same case on a little point like this, something is rotten in Denmark.... I
always thought the PLRA was supposed to make the handling of prisoner
litigation more efficient. If that's its goal, and this sort of thing is its
result, Congress should go back to the drawing board.[169]

Thirteen years after the enactment of the PLRA, it is time
for Congress to amend the law.

Prisons, jails, and juvenile detention facilities are unique
environments. On the one hand, they are places where liberty is severely
restricted—where men, women, and children live, often for years or
decades at a time, under the constant surveillance and near-absolute power of
custodial staff. Even their ability to communicate with the outside world is
restricted, with letters and telephone calls subject to monitoring and
censorship.

At the same time these facilities are, of necessity, closed
institutions to which outside access is limited. Most prisons severely restrict
access by the news media and many flatly prohibit media interviews with
prisoners, practices that have been upheld by the US Supreme Court.[170]
Therefore, the kind of public and media scrutiny that helps prevent abuses of
power in other government institutions simply does not operate in places of
incarceration.

This combination of virtually unlimited power and lack of
transparency creates a potential for abuse—a potential that, as this
report makes clear, is realized all too frequently in prisons, jails, and
juvenile detention facilities. If abuse is to be prevented, and remedied when
it does occur, there must be an outside agency with the power to compel access
to information and order a remedy in appropriate cases.

In the United States this role has historically been carried
out by the federal courts. But the PLRA, by erecting barriers to court access
that apply only to incarcerated persons, has severely limited the ability of
the courts to perform this function. Reasonable amendments to the PLRA would
remove these barriers while leaving intact the law’s central feature: the
preliminary screening of prisoner cases and early dismissal if they are plainly
without merit. Congress should enact these amendments without delay to restore
the rule of law to prisons, jails, and juvenile detention facilities in the United States.

Acknowledgments

This report was authored by David Fathi, director of the US
Program of Human Rights Watch. The report was edited by Benjamin Ward,
associate director of the Europe and Central Asia division; James Ross, legal
& policy director; and Joe Saunders, deputy program director. Additional
review was provided by Jamie Fellner, senior counsel in the US Program, and
Lois Whitman, director of the Children’s Rights division. Layout and
production were coordinated by Grace Choi, publications director; Fitzroy
Hepkins, mail manager; and Abigail Marshak, US Program associate.

[2]
For ease of reference, this report uses the term “prisoners” to
refer collectively to convicted persons, pretrial detainees, and children held
in juvenile detention facilities. The terms “children,”
“juveniles,” and “youths” refer to persons under the
age of 18.

[9]
Human Rights Watch telephone interview with Jeanne Woodford, former warden of
San Quentin State Prison and former director of the California Department of
Corrections, October 29, 2008.

[10]
The PLRA governs lawsuits brought in the federal courts of the United States. Many US states have subsequently enacted laws that similarly restrict
prisoners’ access to state courts. See, for example,Maryland
Prisoner Litigation Act, Annotated Code of Maryland, secs. 5-1001–5-1007,
1997. Those laws are beyond the scope of this report.

[11]
The number of individuals who are incarcerated at some point in a given year is
even higher; the US Bureau of Justice Statistics estimates that 13.6 million
persons were admitted to local jails in the 12-month period ending June 30,
2008. Bureau of Justice Statistics, “Growth in Prison and Jail Population
Slowing: 16 States Report Decline in the Number of Prisoners,” March 31,
2009, http://www.ojp.usdoj.gov/bjs/pub/press/pimjim08stpr.htm (accessed May 31,
2009).

[13]“Confronting Confinement: A
report of the Commission on Safety and Abuse in America’s Prisons,”
June 2006, http://www.prisoncommission.org/pdfs/Confronting_Confinement.pdf (accessed
June 4, 2009), p. 79.

[15]
American Civil Liberties Union, “Out of Step with the World: An Analysis
of Felony Disfranchisement in the U.S. and Other Democracies,” May 2006,
http://www.aclu.org/images/asset_upload_file825_25663.pdf (accessed June 4,
2009), pp. 3, 6-7.

[17]
For a typical view, see Malcolm M. Feeley and Van Swearingen, “The Prison
Conditions Cases and the Bureaucratization of American Corrections: Influences,
Impacts and Implications,” Pace Law Review, vol. 24, 2004, p. 442,
concluding that “litigation has probably been the single most important
source of change in prisons and jails in the past forty years.”

[21]
Under US law, a private citizen cannot compel the criminal prosecution of
another person. Linda R.S. v. Richard D., 410 U.S. 614 , 619 (1973).
Therefore, for prisoners who are subjected to unlawful conduct, a civil lawsuit
is the only remedy.

[24]For a critique of the arguments of the
PLRA’s proponents, see Schlanger,
“Inmate Litigation,” Harvard Law Review, p. 1692 (concluding that “the most basic element of
the critics' account—that the reason so few inmate plaintiffs were
successful was that their cases were simply frivolous (and not just legally
frivolous but actually laughable)—is not true”).

[28]
See, for example, Robbins v. Chronister, 435 F.3d 1238 (10th
Cir. 2006) (en banc) (attorney who won excessive force case for prisoner
received payment of $1.50 as a result of PLRA’s limits on attorney fees);
Pearson v. Welborn, 471 F.3d 732 (7th Cir. 2006) (attorney
who won prisoner’s claim that staff unlawfully retaliated against him,
resulting in confinement in “supermax” prison for more than one
year, received payment of $1.50 due to PLRA’s fee limitations). The
Pearson case is discussed further in section VI, below.

[29]Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 516
(1982).

[38]See Maldonado v. Harris, 370
F.3d 945, 954-55 (9th Cir. 2004) (at the time of Ngo’s lawsuit, the
statute of limitations for civil rights actions brought under 42 U.S.C. sec.
1983 in California was one year; it has since been revised to two years).

[40]Brief
for the Jerome N. Frank Legal Services Organization of the Yale Law School as
Amicus Curiae in Support of Respondent, Woodford v. Ngo, No. 05-416,
2006 WL 304573. See also Woodford, 548 U.S. at 118 (Stevens, J.,
dissenting) (noting that grievance filing deadlines “are generally no
more than 15 days, and … in nine States, are between 2 and 5
days”).

[41]Brief for the Jerome N. Frank Legal Services
Organization of the Yale Law School as Amicus Curiae in Support of Respondent, Woodford
v. Ngo, No. 05-416, 2006 WL 304573.

[71]See, for example, Human Rights Watch, All
Too Familiar: Sexual Abuse of Women in U.S. State Prisons (New York: Human
Rights Watch, December 1996), http://www.hrw.org/legacy/reports/1996/Us1.htm; Daskalea
v. District of Columbia, 227 F.3d 433, 436 (D.C. Cir. 2000)
(“Uncontradicted evidence at the trial of this case established the
routine sexual abuse of women inmates by prison guards at the District of
Columbia Jail”).

[74]
Human Rights Watch telephone interview with Dori Lewis, New York, NY, March 31,
2009. Ultimately, six women were permitted to proceed against individual
officers for money damages, but none were permitted to challenge DOCS policies
and procedures or seek a court order that would remedy the ongoing abuse. As of
spring 2009—six years after the suit was filed— an appeal of this
ruling is pending. Ibid.

[84]
SeeBob Herbert, “America’s Abu Ghraibs,” New York
Times, May 31, 2004, p. A17 (“Not only are
inmates at prisons in the U.S. frequently subjected to similarly grotesque
treatment, but Congress passed a law in 1996 to ensure that in most cases they
were barred from receiving any financial compensation for the abuse”).

[87]Commission on Safety and Abuse in America’s
Prisons, “Confronting Confinement,” p. 86. This provision of
the PLRA does not affect the availability of injunctive relief—a legal
term meaning a court order to halt ongoing unlawful conduct. However, in the
case of a sexual assault or other discrete incident of abuse that is already
completed, injunctive relief is not available, and the only possible remedy is
money damages.

[113]
See, for example, Human Rights Watch, Custody and Control: Conditions of
Confinement in New York’s Juvenile Prisons for Girls, September 2006,
http://www.hrw.org/sites/default/files/reports/us0906webwcover.pdf; Human
Rights Watch, No Minor Matter: Children in Maryland’s Jails,
November 1999, http://www.hrw.org/legacy/reports/1999/maryland/; Human Rights
Watch, High Country Lockup: Children in Confinement in Colorado, August
1997, http://www.hrw.org/sites/default/files/reports/us978.pdf; Human Rights
Watch, Children in Confinement in Louisiana, October 1995, http://www.hrw.org/legacy/reports/1995/Us3.htm.

[120]
Human Rights Watch telephone interview with Deborah P. (pseudonym), Brownwood, Texas, February 2, 2009. Deborah P. is currently a plaintiff in a class action
lawsuit challenging conditions in TYC facilities; a paralegal from her
lawyers’ office was on the line during this interview.

[128]This is consistent with the general
rule under the PLRA that exhaustion must be completed by the detained person,
not by others acting on his or her behalf. See, for example, Harris v. Le
Roy Baca, 2003 WL 21384306, at *3 (C.D. Cal. 2003) (rejecting the
contention that a grievance filed by counsel on prisoner’s behalf
satisfies the exhaustion requirement); El'Shabazz v. City of Philadelphia,
2007 WL 2155676, at *3 (E.D. Pa. 2007) (grievances filed by prisoner’s
father on his behalf did not satisfy PLRA).

[129]Minix v. Pazera, 2005 WL 1799538, at *1-2 (N.D. Ind. 2005). For the
purpose of ruling on the state’s motion to dismiss the case, the court
accepted these facts as true.

[132]
Ibid.,at *3. Because S.Z. was released before the statute of
limitations expired, he was able to re-file his lawsuit. Since he was no longer
a prisoner, the PLRA did not apply, so his lawsuit was allowed to proceed.
Schlanger and Shay, “Preserving the Rule of Law in America's Jails and Prisons,” University of Pennsylvania Journal
of Constitutional Law, p. 154 n. 82.

[144]
Human Rights Watch telephone interview with Jeanne Woodford, October 29, 2008.
However, this view is not unanimous. Martin Horn, Commissioner of the New York
City Department of Correction, has stated that “[t]here is no real
evidence any of [the PLRA’s] prudent rules have resulted in the denial of
access to the courts on the part of state or local inmates. The concerns [PLRA
critics] express are speculative and theoretical.” Letter from Martin F.
Horn to Honorable John Conyers and Honorable Lamar Smith, April 10, 2008, p. 4.

[147]
Although the United States has not yet ratified the CRC, as a signatory to the
treaty it is obligated “to refrain from acts which would defeat [its]
object and purpose.” Vienna Convention on the Law of Treaties, art. 18.

[153]Committee Against Torture (CAT),
“Consideration of Reports Submitted by States Parties under Article 19 of
the Convention, Conclusions and Recommendations of the Committee against
Torture, United States of America,” CAT/C/USA/CO/2, May 18, 2006, http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/e2d4f5b2dccc0a4cc12571ee00290ce0/$FILE/G0643225.pdf
(accessed June 5, 2009), para. 29 (emphasis in original).

[163]
The Commission on Safety and Abuse in America’s Prisons, convened by the
nonprofit Vera Institute of Justice, was co-chaired by a former US attorney
general and a former appellate judge. Its 20 members included prison
administrators, scholars, and a former director of the Federal Bureau of
Investigation.

[165]
Letter from Nicholas de B. Katzenbach and Hon. John J. Gibbons, co-chairs of the
Commission on Safety and Abuse in America’s Prisons, to Chairman John
Conyers Jr., US House of Representatives Committee on the Judiciary, et al.,
November 8, 2007, pp. 2-3.

[166]
The National Prison Rape Elimination Commission, established by the National
Prison Rape Elimination Act of 2003, is chaired by a federal trial judge. Its
eight members include a former prison administrator, academics, a former
prisoner, and a Human Rights Watch staff member.